Cowboys & Critters

He says it's more im- portant to save eagles and grizzlies than warblers and salamanders, believes the federal government is "invading" the lands of property owners in Texas, and once compared the freeing of the slaves to an unconstitutional taking of property.

Whether or not one agrees with Marshall E. Kuykendall, Sr., the flamboyant, country-talking, stetson-wearing Son of the Republic has hit a nerve among hundreds of ranchers, farmers, and landowners throughout the state who say they are fed up with government regulators whose actions imperil their land values. Kuykendall, 60, galvanized that frustration into Take Back Texas, Inc., an organization dedicated to pushing for property rights. Before Kuykendall helped found the movement 18 months ago, property rights was an issue to which few politicians paid attention. Now, in the wake of the governor's race in which Ann Richards' loss has been attributed in part to her opponent's embrace of the property-rights crowd, candidates for the senate, congressional, and local races regularly clamor for Kuykendall's endorsement. Not that Take Back Texas gives any. The group lets the questionnaire the candidates fill out for their membership's perusal speak for itself.

Kuykendall's campaign last year brought sweeping changes to the mood regarding environmental laws, not only in Central Texas, but in Washington, D.C. In January of 1995, Secretary of the Interior Bruce Babbitt, after being sued by Texas Attorney General Dan Morales for attempting to set aside critical habitat for the golden-cheeked warbler, caved in to landowners' concerns by making it easier and cheaper to build in the birds' habitat. The Barton Springs Salamander's fate was put off after property-rights interests secured a moratorium on any new listings of endangered species. And last spring, Kuykendall helped usher in the first property-rights' legislation in Texas history, an act that environmentalists say will cripple the state's ability to enforce wildlife and nature conservation. Although the spotlight has dimmed, the group continues to impact what goes on behind the scenes, pushing for changes to how state agencies like Texas Parks and Wildlife spend their money on endangered species research (see sidebar, p. 20). Take Back Texas also plans to target extinction laws they see as hostile to property owners.

"People say we won, but we've got a lot more work to do," observes Kuykendall, who sees the changes the group has ushered in so far as just a steppingstone in an ongoing drive to kick the federal government off of state land and to bring what he calls a "common sense" approach to the designation of endangered species. "We can't set up laws to harass people just because we don't want development in an area. There can be guidelines we can go by, but a lot has to fall back on the integrity of the individual...Why in the world would a landowner pollute his own water?"

Environmentalists say Kuykendall's hands-off philosophy is nonsensical at best. "The question is, how do you combine private ownership with public responsibility?" explains James Marston, director for the Environmental Defense Fund's Texas Office. "We agree that most people are good stewards of their property. But if you follow Take Back Texas' philosophy, people don't need laws against speeding or stealing because people don't do those things."

During a recent tour of the ranch his family owned for the better part of a century, Kuykendall talked of his favorite subject: history, especially that of his own family. As chief historian of the Old Texas 300, Kuykendall revels in his membership in that elite club of folks who trace their roots back to the original 300 Anglo families Mexico allowed into Texas under Stephen F. Austin's charter. He has written no less than 15 biographies on his forefathers alone, which he has donated to the Barker Texas History Center. Kuykendall boasts that his father, a competitive polo player, died on his ranch with the gates locked. "It was his property and you weren't allowed on it unless you were invited," Kuykendall says. "That is what his life was about."

Kuykendall's genuine Texas pedigree gave the quintessential rancher an edge when he first began speaking out against federal intervention in Texas' environmental business. Ranch owner Dorothy Combs, 73, says she sensed a kindred spirit the first time she saw him speak at a ranchers' informational meeting in Dripping Springs. "He was a property owner and a rancher who was in the same shoes I was in," says Combs, who has since become a Take Back Texas member. "He didn't strike me as a real estate man or a developer."

But while Kuykendall's family may have once owned one of the largest spreads in Central Texas, most of it has been sold off. He now makes a living dividing up others' land for marketing and selling, often to developers, a vocation for which he offers no apologies. His wife, meanwhile, makes her money selling real estate.

Despite his effective leadership of Take Back Texas, Kuykendall resigned last month as president. Not only was the job too time-consuming, he says, but his passion for property rights took a lot out of him: "I got too overwrought and very, very angry." Kuykendall plans on channeling that anger, albeit in a less high-profile way, as a Take Back Texas member. The new president of Take Back Texas, Phil Savoy, will have a tougher time casting himself as anything but a self-promoter with a glaring vested interest. He's with Murphee Engineering, a company that worked on Gary Bradley's Circle C development, and he was on the forefront of anti-Save Our Springs (SOS) forces in 1992.

Kuykendall still contends that Take Back Texas is a "grass-roots organization of farmers and ranchers," and likes to project the idea that he and his fellow Take Back Texans were outgunned by the pro-environmental forces. "We were just standing there with our shirttails out trying to get the first private property laws for Texas," he says with an aw-shucks delivery. But critics say the organization is chock full of developers and real-estate interests, as evidenced by its leadership. "These people are not your tenant farmers," says Marston. "These are your very well-connected political forces who are hitting up the people [to whom] they've been giving campaign contributions for years for favors."

"It's not a Democrat or Republican issue, it's a Texas issue," Kuykendall insists.

Standing at 6'3" without the stetson, the gray-haired, blue-eyed Kuykendall, with his monogrammed khaki shirt and Wrangler jeans, looks more like a cowboy than a salesman. As he bounces his red Blazer jeep over his beloved Hill Country near Dripping Springs, showing off his land, Kuykendall waves around a well-thumbed pamphlet of the U.S. Constitution. "Why do people fight so hard for the First Amendment [right to free speech]? Why not the Fifth Amendment [which says property cannot be taken for public use without compensation]?" he asks. "The federal government is scary -- they can send guys down here with pistols who can fine you hundreds of thousands of dollars for stepping on a snail."

That anti-government fervor and down-home style have made Kuykendall a sought-after commodity for militia groups throughout the state. But he says he's had none of it. Just last week, he admits, the head of the self-proclaimed "provisional government of Texas" asked Kuykendall to join his militia-friendly group in wresting control of the state from Governor George W. Bush. "These guys are nuts," he says. "All I'm interested in is property rights."

Along with love letters from militia groups, Kuykendall receives his fair share of hate mail. One recent anonymous fax reads: "Ranchers, the original genocidal racists. Ranchers, the first to buy politicians. I'd rather have a sister in the whorehouse than be a brother of Marshall Kuykendall. How many Ranchers does it take to screw us? None -- they've bought the Legislature to do it for them."

"Why are the anti-property people so mad?" Kuykendall sighs. He says it was his own righteous anger that originally spurred him to get into the property-rights movement. Savoy, who regularly monitors the Texas Natural Resource Conservation Commission on behalf of his clients, says he first sounded the alarm to Kuykendall and others after the 1994 proposal to designate Barton Springs Pool as an Outstanding National Resource Water (ONRW). "The environmentalists claimed it would amount to a plaque at the Springs with an acre surrounding the pool -- not the pool itself. Well, it turned out that the designation could have meant the triggering of federal government intervention over 357,000 acres, which included all of Barton Creek and the contributing and recharge zones," Kuykendall recalls, shaking his head. "And the environmentalists claim they don't lie."

Thus was born Take Back Texas, a name that environmentalists say is clever, but inaccurate. With the ONRW, "the state was proposing a state rule about protecting our resources -- who were they going to take Texas back from? Ourselves?" Marston asks, adding that Oklahoma and Arkansas have dozens of bodies of water that those states have chosen to protect with ONRW designations.

Kuykendall responds that Texas is the only state that is 95% privately owned. "When I go to a place like Yellowstone [National Park], I want that son-of-a-bitch to be pristine, but when you put an ONRW in a private-property state you've got trouble," he says.

At about the same time the Barton Springs ONRW was under consideration, the U.S. Fish and Wildlife Service announced its proposal to identify portions of 33 Central Texas counties as critical habitat for the golden-cheeked warbler. Both actions appeared to landowners as an invitation to the federal government to take over. Take Back Texas' executive director, landowner Taliaferro "T.J." Higginbotham IV, sums it up this way: "We want to protect water and air, but put yourself in a position where you own land and somebody from Washington, D.C. says you can't clear it because a bird might come through and want to use a strip of your cedar bark for a nest," he says.

Kuykendall estimates that he led more than 3,000 mad-as-hell Take Back Texas marchers down Congress Ave. to the capitol in August of 1994 to say they weren't going to take it any more. Suddenly, politicians who wouldn't give Kuykendall the time of day were welcoming him into their offices. Then-Governor Ann Richards, who was running for re-election, found the time to speak with a Take Back Texas delegation, but as Kuykendall recalls, the meeting didn't go well. "By that time, she had already backed off on the ONRW, but she refused to block [Department of the Interior Secretary Bruce] Babbitt from coming to Texas to set aside critical habitat," he says.

So Kuykendall went to the state's lawyer, Attorney General Dan Morales, who already seemed to be gathering ammunition on behalf of the Take Back Texas campaign. Morales sued Babbitt a few weeks after Kuykendall's visit. "Morales called me on my vacation so I'd be the first to know," he says. Morales' suit challenged the Department of the Interior's definition of "harm" to an endangered species, arguing that it was being interpreted too broadly and amounted to an unconstitutional "taking" of private property without compensation. In addition to the suit, Morales warned that if Babbitt followed through on his proposal to list the Barton Springs Salamander as an endangered species, he would sue him for that as well, claiming that he lacked adequate scientific data to warrant the designation. Critics called Morales -- a Democrat running for re-election -- a political opportunist who was pandering to the conservative vote. Morales said he was merely following the law.

But soon after those successes, Kuykendall, who says he speaks extemporaneously because he stutters when he reads, made a monumental verbal blunder considered by many on both sides as a racist comment. At a property-rights forum, he said, "When Lincoln freed the slaves, he did not pay for them. Some people are trying to fall back on that as a constitutional error." Kuykendall says the comment was merely a historical observation taken out of context, and that he does not believe slaveholders should have been compensated. Regardless, the damage was done. Statewide groups like the Texas Farm Bureau, Texas' largest agriculture organization, kept their distance from him. Kuykendall stopped being invited to forums and celebration parties. Not that it mattered. Kuykendall showed up at property-rights functions anyway.

One famous party he crashed was in Waco last spring, where Governor Bush signed Senate Bill 14 into law. Kuykendall was not invited to attend by the Farm Bureau, he recalls, even though he says his group was instrumental in getting SB 14, known as the "takings bill," passed. Determined not to be ignored, Kuykendall traveled to Waco on his own and mixed in with the crowd. When Bush thanked Take Back Texas during his remarks, Kuykendall approached the podium, handed Bush a Take Back Texas sticker, and shook State Representative Susan Combs' hand. A photographer Kuykendall hired for the occasion captured the moment.

"There's a lot of jealousy at the Farm Bureau because they get paid tons of money [to work on property rights], but it took Marshall Kuykendall to get the job done," says Take Back Texas president Savoy. "The alleged racial slur was an excuse they used not to give him any credit."

"Here was this loud-mouth who's never been involved in politics coming out of the woodwork and shaking everybody up," adds Higginbotham. "No one was paying him and no one could shut him up or tell him what to say."

Joe Maley, director of the Texas Farm Bureau, denies any jealousy, and says that no slight of Take Back Texas was intended. He adds that the Bureau rarely shares the stage with other groups. "We don't want to jeopardize our message," he explains.

Kuykendall complains that the watered-down version of SB 14 that finally passed last session is so thin "you could read a newspaper through it," but he still counts the takings legislation as his greatest achievement as president. The law, which requires that the federal government compensate private landowners if an environmental regulation diminishes the value of their land by 10% or more, marks a horrendous turn of events for health and public safety, say environmentalists. They fear that regulators will not enforce eco-protections in order to avoid lawsuits from landowners seeking compensation. "The message here is: If you do your job, you will get sued," Marston says. SB 14 advocates like house sponsor Combs counter that the bill is merely a way to get regulators to "look before they leap."

Another party to which Kuykendall showed up uninvited was the national property-rights conference last September, which featured speakers Dan Morales and U.S. Representative Helen Chenoweth (R-Idaho). Dubbed by critics as the "poster-child for the militias," Chenoweth spoke about the 1992 standoff at Ruby Ridge where federal agents killed the son and wife of white separatist Randy Weaver.

Kuykendall says Chenoweth's comments had no place at the conference, and decries the fact that environmentalists tie militias together with the property-rights crowd. But Cecile Richards of the Texas Freedom Network says that the property-rights advocates asked Chenoweth to speak for a reason. "It is obvious that some of them share extremist anti-government views," she says. In addition, several militia members, sans invitations, were spotted at Kuykendall's triumphant march to the Capitol.

So with Kuy- kendall no longer the public face of Take Back Texas, will the group lose some of its power? Not if the new officers can help it. Savoy says he and others will be following developments concerning the Endangered Species Act, and will continue to monitor the work and staffs of state environmental agencies. Executive Director Higginbotham says his group will try to overturn a senate bill that "slipped in" last session that allows employees of state environmental agencies to come onto private property without permission when they suspect water is being polluted on the land. "Farmers and ranchers get pretty skeptical when they see uninvited people with tax-exempt plates come onto their property," Higginbotham explains. "They should have to justify their presence and get permission."

Another message Take Back Texas officials will hammer home is that some species just aren't worth saving. Better to spend tax money on "more significant" species like the bald eagle and the grizzly "that you can stand up with the American flag" than on "critters and bugs," Kuykendall says, referring to the Barton Springs Salamander and certain endangered cave bugs in the area.

Environmentalists say that it is the height of hubris for man to pick who lives and who dies. "Every species fits into the web of life," Marston retorts. "God put them here for a purpose."

Kuykendall replies: "In my Biblical days I thought man was put on this land to have dominance. How did we get behind the 8-ball? Since [the 1973 Endangered Species Act] critters have had dominance over us."

Kuykendall may have more time to ponder these questions now that he's no longer president of Take Back Texas. Some of his fans might expect him to ride off into the sunset, but more likely he will continue selling land and writing biographies from his condo, which is located in southwest Travis County and filled with rare folk art. Take Back Texas member Dorothy Combs says she's sorry he will no longer lead the charge, but, she adds, "I think [Kuykendall] can say, `Mission accomplished.'"

The Environmental Defense Fund's Marston has a different take on Kuykendall's legacy: "Did Take Back Texas play an important part in passing legislation that will have unintended consequences that we will all suffer for? Yes. Did they change the public attitude toward saving our environment? No." n